In the latest developments in the Section 377 issue, the Supreme Court is set to hear a curative petition filed by gay rights activists and Naz Foundation on 2 February. The curative petition is against the apex court's 11 December 2013 judgement upholding the validity of section in the Indian Penal Code and the January 2014 order by which it had dismissed many review petitions.
The bench will be headed by Chief Justice TS Thakur and will hear the petition filed for 'curing' the "defects in the judgement," reports IBNLive. Earlier the Delhi High Court in 2009 had repealed the Section 377, however the Supreme Court in 2013 declared that the Delhi Court could not have a say in the matter and that it was up to the Parliament to amend or strike down the law.
The battle so far
The journey for 'emancipation' has been a long one for the LGBTQI community in India. In the 15 years that the case has caught the public's attention, there have been ups and downs. If there is one good thing that has come from this long drawn battle for basic equality and liberty, it is that homophobia is not celebrated in the Indian mainstream anymore. Actors, activists, politicians have come out in favour of striking down the law.
2 days to go for the SC hearing- Vigils across the country today. Lets raise our voices and demand that the archaic Section 377 be scrapped — Neha Poonia (@NehaPoonia) January 31, 2016
The LGBTQI groups have mobilised themselves, hundreds of gay men and women came out to their families, friends and to the world — because the personal is political.
In light of the awaited verdict on the curative petition, the LGBTQI communities are conducting vigils across the nation, if you want to be a part of them and express your solidarity, follow this list.
If the curative petition does not come out in favour of the community, the next recourse would be to pressure the Parliament to strike down the law or amend it.
— delhiqueerpride (@delhiqueerpride) January 31, 2016
Section 377: A history and key highlights
This section in Chapter XVI of the IPC was introduced during the colonial rule criminalising any sexual activity 'against the order of Nature'. The law states that those who voluntarily indulge in carnal intercourse against the order of Nature with any man, woman or animal shall be punished with imprisonment for life or for a term which may extend to 10 years and also be liable to a fine. According to Rudranee Goswami in her paper, Historical evolution of Section 377 and its location within the LGBT movement in India, the section was written to criminalise, discourage and prevent homosexual relations, especially acts involving penile penetration and "even heterosexual acts such as fellatio and penile penetration maybe a punishable offence."
According to Lawyers Collective, the section has become subject to "varied judicial interpretation" over the years. The section initially covered only anal sex, later included oral sex and also covers penile penetration of other "artificial orifices like between the thighs or folded palms" — age and consent do not feature in this decree at all, and there is a blanket prohibition "on all penile-non-vaginal sexual acts" under the ambigious term — unatural offences.
Lawyers Collective, on behalf of Naz Foundation filed a writ petition in the Delhi High Court in 2001, challenging the constitutionality of section 377 on the grounds that the draconian law grossly violates the right to privacy, dignity and health under Article 21, equal protection of law and non-discrimination under Articles 14 and 15 and freedom of expression under Article 19 of the Constitution. A notice was issued to Union of India in 2002 and the Attorney General was asked to appear. In 2004, the petition was dismissed by the High Court (citing lack of action). A review petition was then filed against the dismissal, which ironically was dismissed too and then after a Special Leave to Appeal was filed in 2005, a year later the Supreme Court said, "“the matter does require consideration and is not of a nature which could have been dismissed on the ground afore-stated." In 2009, the Delhi High Court, much to the relief of the LGBTQI community passed a judgement that Section 377 indeed was violative of Articles 21, 14 and 15 of the Constitution as it criminalised the consensual sexual acts of adults in private.
Before India could take its first steps towards progress, the Supreme Court quashed Delhi High Court judgement in 2013 and declared that it was a judicial overreach and that it was not "for courts to create the law" said the two-judge bench headed by Justice GS Singhvi. The Supreme Court backed out, but passed the ball to the Parliament to review a law that considered private sexual activity criminal.
According to News Laundry, Shashi Tharoor used social media to raise awareness and sign petitions and introduced a private bill that sought to allow adults to have consensual non-vaginal sexual intercourse, but it was almost immediately rejected without being introduced.
Striking down Section 377
Naz Foundation in its petitions and documents has maintained that this section is dangerous to a community because the law sought to criminalise someone's sexual identity and expression, putting them at the risk of extortion, blackmail and harassment. Since the law condemns them as "criminals", they have no legal recourse but only stigma and prejudice. Many homosexual men with HIV do not get tested because of fear of discrimination and prosecution.
"the recent prosecutorial use of Section 377 IPC, the same is detrimental to people’s lives and an impediment to public health due to its direct impact on the lives of homosexuals; that the section serves as a weapon for police abuse in the form of detention, questioning, extortion, harassment, forced sex, payment of hush money; that the section perpetuates negative and discriminatory beliefs towards same sex relations and sexual minorities in general; and that as a result of that it drives gay men and MSM and sexual minorities generally underground which cripples HIV/AIDS prevention methods."
(Suresh Kumar Koushal vs NAZ Foundation, read more at the end of this article)
A 'curative' petition
The constitution of India guarantees appeals to judgements passed by courts and also apex court through Article 136 of the Constitution of India, 1950. The Supreme Court in its discretion may grant "special leave to appeal from any judgment, decree, determination, sentence or order in any case or matter passed or made by any Court or tribunal in the territory of India except the Court or tribunal constituted by or under any law relating to armed forces."
According to the The Supreme Court of India Handbook, the curative petition came into being after a 2002 case, Rupa Ashok Hurra vs Ashok Hurra and Anr. where after the dismissal of a review petition, the Supreme Court may entertain a curative petition and reconsider its judgement/order in order to "cure gross miscarriage of justice", but to prevent the abuse of its process, it can only be filed if a Senior advocate certifies that its meets the requirements. The petition is circulated in chambers, and not in open court, before a bench (comprising three senior most judges and judges which served the previous order/judgement).
In the Hurra case, the bench held that a judgement passed by the apex court could not be attacked by an aggreived party, but recognised the need for flexibility and substantive justice — so a concept 'curative petition' was evolved.
Previously, Yakub Memon's lawyers had sought to use the curative petition, however, it was dismissed by by a bench of Chief Justice of India HL Dattu, Justice TS Thakur and Justice AR Dave on 21 July 2015, as reported by Hindustan Times. The Supreme Court quashed BJP's Subramanian Swamy's curative petition against then Finance Minister P Chidambaram's role in the 2G scam. Sanjay Dutt had also used a curative petition to review the court's verdict on the 1993 blasts case, however, the Supreme Court did not entertain it, reports NDTV.
According to Daily Mail, the Supreme Court did allow a curative petition against a 2009 judgement which held that if a woman kicked her daughter-in-law or threatened her with divorce it would not amount to cruelty under section 498A of the Indian Penal Code. In 2010, the Supreme court corrected a verdict which led to the wrongful detention of four-accused in a 21-year-old murder case. The Indian Express reports that a 'curative petition' be "rare than regular, and be entertained with circumspection."